As the United States shuttered due to coronavirus, every day children watched immigration judges miles away pop up on TV screens for hearings that will ultimately decide whether they can stay in the country.
The Justice Department has continued some deportation hearings, including those of unaccompanied minors, during the pandemic as the Trump administration seeks to crack down on immigration and complete cases at a faster pace. The move, immigration attorneys say, is likely to put kids, facing deportation, at a greater disadvantage.
One example of the challenges confronting children is having to attend hearings without an attorney physically present with them. Given guidelines on social distancing and gatherings, the courts have leaned on conducting hearings via video teleconference, resulting in the judge, attorneys, and child all participating from separate locations.
That can be confusing for children, some of whom have never seen a judge or a courtroom before, making even the simplest components of a hearing daunting.
“Under this arrangement, it’s often virtually impossible for a child to comprehend the proceedings,” said Jason Boyd, director of policy at Kids in Need of Defense, an immigrant advocacy organization.
In some cases, children have mistaken the interpreter who might be in the same room for the immigration judge, Boyd said.
Attorneys have repeatedly expressed concerns about video teleconferencing, arguing that it presents due process barriers for a host of reasons, including connectivity issues during sensitive hearings. Under current circumstances, lawyers also face obstacles in communicating with children who, in some cases, might be in medical isolation after testing positive for coronavirus.
“It’s always difficult to work with children than adults because children are at a different level developmentally,” said Ashley Huebner, associate director of legal services at the National Immigrant Justice Center. “But now we’re trying to do that over the phone and having trouble even scheduling phone calls with them because they’re in isolation.”
“There’s a hierarchy of bad options here for these cases when ultimately, they shouldn’t be going forward at all right now,” Huebner said. The hearings of children in care are usually among the first in a series of proceedings.
The Office of Refugee Resettlement, an agency that falls under the Department of Health and Human Services, is responsible for the care of migrant children who have arrived to the US alone. The agency currently has 2,100 children in its custody, 59 of whom have tested positive for coronavirus at shelters in Texas, Illinois, New York and Pennsylvania.
For court purposes, the children are considered as detained, therefore their proceedings can continue to move forward during the pandemic. Those in custody are likely to have an upcoming hearing, even if they’ve tested positive for coronavirus or been exposed to it, although in some of those cases, the appearance of the children has been waived.
Most hearings are happening via video or telephone from the shelters where children are staying, the agency stated.
The Justice Department, under mounting pressure from judges and attorneys, has postponed immigration hearings for people not being held in detention through May 15. Hearings of those already detained, meanwhile, are continuing.
While continuing to conduct detained hearings in some scenarios, like a bond hearing, makes sense in adult cases, it’s questionable in the case of unaccompanied children, said Judge Ashley Tabaddor, president of the immigration judges’ union, since kids are already expected to be released to the care of a sponsor, like a parent or relative, in the United States.
“We have taken the position with the agency that they’re categorization of the unaccompanied juvenile docket as detained similar to the adult detained docket is completely inconsistent and unnecessary in the context of the pandemic,” Tabaddor told CNN.
“They are in shelters and foster care, going through the reunification process that’s independent of coming to a court hearing. The equivalent of a bond hearing is happening outside of the court,” she added. “Bringing them to court serves no other purpose other than to force them to go through these proceedings in an expedited fashion.”
EOIR did not respond to request for comment.